1. During the cross examination of Milorad Davidovic
on 13 June 20051
and on 27 June 20052 the Defence alleged
that the witness was a liar and a criminal, suggesting
that he had been involved in several, quite specific,
incidents of criminal activity and referring to a number
of documents. In particular, on 27 June 2005 Defence
counsel alleged that Mr Davidovic had seized property
belonging to a dentist, and that the dentist had spoken
out on local television about this episode after seeing
the witness testifying on 13 June 2005.3 At the end of cross-examination, the Presiding Judge asked the Defence if the Chamber
could expect some material to support the allegations4 and stated
that the Chamber would like to see any such material.5
The Prosecution also highlighted the importance of
laying a proper foundation for serious allegations
relating to a witness.6
The Defence then provided the Prosecution with a police
report relating to the guardianship of Mr Davidovic
during his childhood, as well as some documents showing
that Mr Davidovic, or a company with which he was
affiliated, was involved in civil proceedings in Bosnia-Herzegovina.7

2. On 14 July 2005 the Trial Chamber instructed the
Defence to inform the Trial Chamber by 21 July 2005
of all information it had available to support the
allegations of criminal conduct on the part of the
witness, since “while a party may be fully
justified to put such questions to a witness, it should
not be done in the absence of reasonable grounds
to believe that the witness did misbehave in the
way that was put to him”.8

3. On 18 July 2005 the Defence declined to submit
the requested information, invoking lawyer-client
privilege.9

4. On 5 September 2005, the Prosecution, in writing,
objected not only to the substance of the allegations
made by the Defence as being without an adequate
basis, but also to the generic, unspecified claim
of privilege. The Prosecution asked the Chamber
to make findings that there was no proper basis for
the allegations made against the witness, that the
witness was treated unfairly, and that the questions
put to the witness were improper. Depending on the
information provided to the Chamber, it also suggested
that the Chamber take additional steps, such as inviting
the Defence to fulfil its offer to withdraw, immediately
and unreservedly, the allegations made, inviting
the Defence to apologize publicly to the witness,
or issuing a warning pursuant to Rule 46(A) of the
Rules of Procedure and Evidence.10

5. On 21 November 2005 the Defence, responded that
it is one of the tasks of the Defence to try to
discredit Prosecution witnesses. It noted that while,
after further inquiries, the allegation relating
to the theft of the dentist’s equipment cannot
be supported, other allegations are backed by the testimony
of Witness 682, who testified after Mr Davidovic.
It also reiterated its conviction that Mr Davidovic
is both a liar and a criminal. Finally, the Defence
submitted that the Defence team is still investigating
Mr Davidovic’s acts and conduct and that the Chamber
should not make any pronouncement or finding on
the witness’s treatment until it hears
all the evidence in this case.11

6. Article 13 of the Code of Professional Conduct
for Counsel Appearing before the International Tribunal
states that confidentiality entails the following:

Whether or not counsel continues to represent a client,
counsel shall preserve the confidentiality of the
client's affairs and shall not reveal to any other
person, other than to members of his team who need
such information for the performance of their duties,
information which has been entrusted to him in confidence
or use such information to the client's detriment
or to his own or another client's advantage.

7. The Chamber is somewhat hesitant to accept that
all the requested information should be regarded
as “information which has been entrusted to SDefence
counselC in confidence”. For example, at the time
when the allegations in relation to the theft of
the dentist’s equipment were made on 27 June 2005,
a member of the Defence team had already spoken
to the dentist’s husband on the phone. The Chamber
later received information that during this telephone
conversation, the dentist’s husband
denied that his wife had made the allegations against
Mr Davidovic. Yet the Defence counsel still confronted
the witness with these allegations. Without further
insight into the type of information concerned,
the Chamber cannot make a final determination on
the question of privilege. In light of the above,
however, the Chamber underscores that the refusal,
on 18 July, to produce any information substantiating
the allegations against Mr Davidovic, invoking privilege,
is of some concern to the Chamber.

8. The Chamber will now address the issue of how the
cross-examination of Mr Davidovic was conducted.
The Defence has the right to ask a witness pointed
questions in order to test his or her reliability
and credibility, even though this may be an unpleasant
experience for the witness. Subject to the overriding
requirement of relevance, the Rules of the Tribunal
do not limit the matters that may be raised during
cross -examination which is directed solely at the
credibility of the witness. Indeed, Rule 90(H)(ii)
of the Rules of Procedure and Evidence of the Tribunal
imposes an obligation on a party to put to a witness
in cross-examination the nature of its case which
is in contradiction with the evidence of that witness.12
This may well include that party’s assessment of the
character of a witness.

9. Nevertheless, cross-examination is not a boundless
exercise and must be conducted within reasonable
limits. One such limit, deriving in part from the
Chamber’s duty
to protect witnesses under Article 22 of the Statute,
is that witnesses should not be subjected to improper
or unfair questions. The Chamber considers that where
a party wishes to confront a witness with what effectively
constitute allegations that the witness has engaged
in serious criminal conduct, that party must have
reasonable grounds to do so at the time the allegations
are made. “Reasonable grounds” does
not require that the party have in its possession incontrovertible
evidence of wrongdoing ; it does, however, require
something more than mere hunch, innuendo, or unsubstantiated
hearsay.13 Putting
aside the individual characteristics of a witness,
the Chamber considers that strong language may be
acceptable in cross-examination when a party has
a solid basis for making allegations that a witness
has engaged in criminal activities. The weaker the
grounds for making an allegation, however, the
more caution is called for on the part of cross-examining
counsel.

10. Generally, the Chamber will disallow a question
or sustain an objection against a question in cross-examination
where, in the Chamber’s view, it constitutes an
unwarranted attack on a witness. This includes a situation
in which a party makes unsubstantiated allegations
of criminal behaviour in relation to the witness.
In the present case, the Prosecution did not object
in the course of Mr Davidovic’s
cross-examination. It became clear to the Chamber only
at the close of the cross -examination that no material
was immediately forthcoming from the Defence to support
its allegations against Mr Davidovic. In these circumstances,
the Chamber considers that it is appropriate to
undertake a retrospective analysis of the way in
which Mr Davidovic’s cross-examination was conducted.
This is not, perhaps, an ideal solution for Mr Davidovic
himself, and the Chamber would wish not to have to
repeat such an exercise.

11. The Chamber considers that a number of questions
put to Mr Davidovic did, in effect, amount to allegations
that the witness had been involved in specific incidents
of serious criminal conduct. These allegations were
put to the witness without reservation or qualification.
The Chamber highlights the allegation regarding the
theft of the dentist’s equipment as the most serious
example. Without access to all the information,
the Chamber is unable to make a fully-informed finding
as to whether the Defence had reasonable grounds,
at the time of the cross-examination, to allege that
Mr Davidovic had engaged in criminal conduct. Invocation
of privilege, however, cannot preclude the Chamber
from making any determination in this respect, as
this would amount to giving the parties carte-blanche
with regard to the conduct of cross-examination.
The documents produced by the Defence (see paragraph
1 above), do not demonstrate that the Defence had
reasonable grounds to formulate the allegations of
criminal conduct in question in the way they did.

12. Since the Defence has now withdrawn the most specific
allegation, the one in relation to the theft of
the dentist’s equipment, on the grounds that it cannot
be supported, the Chamber considers that it need
go no further at this stage than to state that it
regrets the use of some inappropriate phrases during
the cross-examination of Mr Davidovic. The Chamber
also urges caution in future when a party wishes
to ask questions in cross-examination suggesting
that a witness has engaged in criminal activity.
The Chamber will closely monitor cross-examination
of witnesses in this respect.

13. The Chamber reiterates that this decision does
not in any way curtail the possibility for the Defence
to tender material aimed at influencing the Chamber’s
perception of Mr Davidovic credibility and reliability.

Done in English and French, the English version
being authoritative.

__________________
Judge Alphons Orie
Presiding Judge

Dated this 15th day of December 2005
At The Hague,
The Netherlands

[Seal of the Tribunal]

1 - T 14376,
line 13.2 - T 15225,
line 3 to T 15229, line 23.
3 - T. 15225,
lines 17-19, 23-5.4 - T. 15230.5 - T. 15231.6 - T. 15234.7 - Prosecution’s
Submissions on Cross Examination of Milorad Davidovic,
5 September 2005, para. 6. 8 - T. 16543-5.9 - T. 16581-2.10 - Prosecution’s
Submissions on Cross-Examination of Milorad Davidovic,
5 September 2005. 11 - Defence
Response to Prosecution’s Submissions on Cross-examination
of Milorad Davidovic, 21 November 2005. 12 - Rule
90(H)(ii) of the Rules of Procedure and Evidence reads: “In
the cross-examination of a witness who is able to give
evidence relevant to the case for the cross-examining
party, counsel shall put to that witness the nature
of the case of the party for whom that counsel appears
which is in contradiction of the evidence given by
the witness.”
13 - See,
for example, United States v. Zaccaria 240 F.3d 75
(1st Cir., 2001) (USA), in which it was held that insufficient
evidentiary basis for an allegation of criminal conduct
made in the course of cross-examination was a legitimate
reason to circumscribe cross-examination. See also the
Code of Conduct of the Bar of England and Wales, para.
708 (j).